56 (H) Motion for Determination of Question of Law (2)

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applied for approval of a decree for recreational water rights to be used in a whitewater course located in the Town of Breckenridge in Case No. OOCW281. The Breckenridge course when completed will be approximately 1800 feet in length and will occupy the channel of the Blue River. There will be approximately 15 man -made structures to create the whitewater features of this course. The conditional water rights requested in this application are set forth in the chart below. The applicants, Eagle River Water and Sanitation District and the Town of Breckenridge will be referred to as the Applicants and these two whitewater courses will be referred to as Vail and Breckenridge. The applications were opposed by the State on Feb. 27, 2001. Vail Course Breckenridge Course Mar Apr May Jun Jul Aug Sep Oct Nov Conditional c.f.s. 54 226 400 400 400 218 67 48 31 Breckenridge Course STATEMENT OF THE ISSUE. Senate Bill 212( "SB 212 "), enacted after the application at issue in City of Thornton v. City of Fort Collins, 830 P.2d 915, 930 (Colo. 1992), applies to this case to prevent this type of appropriation as an impermissible instream flow. In 1992, this Court affirmed a water right decreed to the City of Fort Collins for two dams used for recreational and piscatorial uses. City of Thornton v. City of Fort Collins 830 P.2d 915, 930 (Colo. 1992). The Power Dam boat chute, the boat chute analogous to the Applicants' courses, was a narrow channeling of the river constructed to allow boaters to pass safely through a stretch of the river previously unnavigable. The Fort Collins dam structure impounded the water, while the boat chute was a notch in the dam that controlled and concentrated the flow of water for safe passage of boaters. The Court held that "the chute and the ladder control and direct river water only at unspecified low flows in the river," which was not a defect since that is precisely what they were designed to do. Fort Collins, 830 P.2d at 932. Based upon the low -flow notch that narrowly controlled the water to allow safe passage, this Court found that the Fort Collins boat chute conformed to the diversion requirements of Colorado water law. See Fort Collins 830 P.2d at 931 -932. The court noted that if the water `.`continues to flow as it did prior to the renovation," then the dam would not control the water and the claim would have been an illegal instream flow. Apr May Jun Jul Aug Sep Oct Nov Conditional c.f.s. 39 281 524 343 205 82 51 27 STATEMENT OF THE ISSUE. Senate Bill 212( "SB 212 "), enacted after the application at issue in City of Thornton v. City of Fort Collins, 830 P.2d 915, 930 (Colo. 1992), applies to this case to prevent this type of appropriation as an impermissible instream flow. In 1992, this Court affirmed a water right decreed to the City of Fort Collins for two dams used for recreational and piscatorial uses. City of Thornton v. City of Fort Collins 830 P.2d 915, 930 (Colo. 1992). The Power Dam boat chute, the boat chute analogous to the Applicants' courses, was a narrow channeling of the river constructed to allow boaters to pass safely through a stretch of the river previously unnavigable. The Fort Collins dam structure impounded the water, while the boat chute was a notch in the dam that controlled and concentrated the flow of water for safe passage of boaters. The Court held that "the chute and the ladder control and direct river water only at unspecified low flows in the river," which was not a defect since that is precisely what they were designed to do. Fort Collins, 830 P.2d at 932. Based upon the low -flow notch that narrowly controlled the water to allow safe passage, this Court found that the Fort Collins boat chute conformed to the diversion requirements of Colorado water law. See Fort Collins 830 P.2d at 931 -932. The court noted that if the water `.`continues to flow as it did prior to the renovation," then the dam would not control the water and the claim would have been an illegal instream flow.